The threat of being indicted by a grand jury to stand trial in the US is one widely publicised reason WikiLeaks founder Julian Assange gives for his flight to the Ecuadorian embassy in London. US grand juries have been criticised for their secrecy and are often regarded as a prosecutor's rubber stamp. So, what exactly is a grand jury?

Transcript

Anita Barraud: First to a legal body that’s very foreign to us, but we’re hearing mentioned a lot these days.

Geoffrey Robertson: There is a saying among American lawyers that the grand jury would indict a ham sandwich.

Julian Assange: A grand jury would not only indict a ham sandwich, it would indict the ham and the sandwich.

Anita Barraud: Julian Assange and before him Geoffrey Robertson, prominent barrister and until recently lawyer for the WikiLeaks founder. The ham sandwich reference was mentioned in the iconic American novel Bonfire of the Vanities. The idea that a grand jury is essentially a prosecutor’s rubber stamp is attributed to New York judge Solomon Wachtler. Sometime later, over lunch, it’s said, the judge regretted he didn’t say pastrami. The threat, though, of a grand jury in the US is one reason WikiLeaks founder Julian Assange is currently holed-up in the Ecuadorian embassy. Well, what is it? What is a grand jury? David Weisbrot is Professor of Legal Policy at the United States Study Centre at Sydney University.

David Weisbrot: A grand jury is...is just an investigation. Their job is to decide whether there’s enough evidence to bring someone to trial. It’s not like a jury that we think of, the people who hear all of the evidence and then make a decision as to guilt or innocence, the grand jury only hears one side of the case. It’s really led by federal prosecutors, US attorneys at the federal system, and then they’re just presented the evidence that the prosecution wants them to hear, essentially. There…most often will proceed to an indictment, and then it’s really over to the US prosecutors to take it to an open trial. I mean, there’s now clear evidence that there is a grand jury, it’s been investigating the WikiLeaks and any possible criminality emerging out of that, and it’s in the northern district of Virginia, which is the one that most commonly handles matters of national security, that and New York are the two places where those cases most often proceed.

Anita Barraud: In fact, the grand jury system was based on a very grand democratic principle, wasn’t it? What happened to turn it into a system that is often seen as a prosecutor’s rubber stamp?

David Weisbrot: Yes, well it didn’t change that much, it’s just that everything else changed around it. So when grand juries originated in Norman England, we’re talking about the mid-12th century, it was a major innovation to have a group of your peers who stood between you and the crown, so the king or the prince couldn’t just say, ‘I want that person thrown into irons, put him in the dungeon, or have that…off with their head’, you actually had to have a bunch of people from the community say, ‘Yes, there’s a case here to be heard.’ Also at that time, of course, there were no standing police forces, and there were no prosecutors. So really they had to do the job that is done now by others. The question is, 800 years later, whether this is still a significant reform, and most places have done away with it. The grand jury mechanism’s no longer used in Australia, in New Zealand, the UK, where it originated, Canada. Only America really is the last bastion of the grand jury.

Anita Barraud: And why is that, do you think?

David Weisbrot: Partly it’s historical, partly it’s constitutional. Again, in 1788 when these things were being drawn up in the US, it was still regarded as a significant reform and it stood as a bulwark against the Crown, and of course in the independence period quite a few grand juries refused to prosecute some of the pamphleteers and the advocates for independence, and again, at that time there were no standing police forces, there were no public prosecutors, district attorneys and so on. So the Fifth Amendment to the US Constitution actually says you can’t be put to an indictment, you can’t be put to trial for a serious crime as something that carries a prison sentence of a year or more, unless a grand jury has found that there’s a case to answer.

Anita Barraud: So in effect it was actually a protection for the defence in many ways originally, and also a way of investigating corruption in government?

David Weisbrot: Well that’s right, it was often referred to as both a sword and a shield. But the thing is that there’s no other lawyers in there, there’s no judge, so the US attorney really runs the show, and the evidence, the advice that the grand jury asks for on legal matters or on framing charges or whether something’s a federal crime or not, all comes from the US attorney.

Anita Barraud: What do we know about the jurors? We’re not allowed to know who the jurors are, are we? It’s...that’s all secret.

David Weisbrot: That’s right, the jurors have to sign a secrecy agreement, and it’s very strict, they’re not even allowed to discuss it with family or friends, certainly not with the media...

Anita Barraud: Although witnesses are not sworn to secrecy in federal grand juries.

David Weisbrot: They’re not, but the grand jurors are sworn to secrecy, and the US attorneys are under an ethical obligation of secrecy.

Anita Barraud: David House, who’s running a support campaign for Bradley Manning and WikiLeaks has appeared, apparently, before the grand jury in Virginia, and he spoke very frankly about it.

David Weisbrot: That’s right, he also refused to cooperate with the grand jury, so he’s a fairly brave person, because you could get into trouble for a number of those things. I mean, he’s...I think he’s banking on the fact that the publicity itself may protect him in that. I don’t think they want to...the authorities want to make him a cause celebre. Basically the grand jurors are called in the same ways that jurors are called for a trial; they’re people who are on the voting rolls, although voting is so poor in the United States that there are a large proportion of people who are not there, so they sometimes supplement the voting rolls with other things like local council records or whatever. Unlike regular jurors, they’re not put through what’s known as a voir dire, the questioning; do you have any biases, do you feel you can serve impartially, do you know any of the people involved in this matter, and then they’re empanelled for a period, not necessarily just one case, and then they look at federal criminal matters and decide whether to recommend prosecution or not.

Anita Barraud: And the prosecution, it can be a team of prosecutors too, can’t it?

David Weisbrot: Well, it normally is, yes. The US attorney’s offices are fairly well staffed, I believe I’ve read that in the Assange, or what’s thought to be the Assange grand jury operating in Alexandria at the moment there are six people from the US attorney’s office involved.

David Weisbrot: Almost anything. I mean, the rules say that they can inform themselves as they see fit, they’re not a trial jury that has to hear evidence that’s admissible under the rules of evidence, common law rules and all sorts of statutory rules of evidence. There’s no defence lawyer who’s challenging evidence and saying, that’s hearsay, or it’s otherwise inadmissible. Hearsay is okay, there’re specific cases, federal cases that say, yes, you can present and consider hearsay evidence, even illegally obtained or incompetent evidence is okay. So for example, evidence that was obtained in violation of a person’s rights against self-incrimination, illegally obtained tax return information, lie detector results, which are not normally admissible at trial can be presented to a grand jury, whether a person has previous convictions or has refused to testify, even perjured testimony has been allowed...has been considered to be okay, to be heard by a grand jury. Of course, it would never be admitted at trial.

Anita Barraud: It seems extraordinary that you can hear evidence that would not normally be admissible even in mounting a case. Surely that could then lead to arguments from the defence, if it did go to court, that it was unconstitutional?

David Weisbrot: Well, no, it’s constitutional at the grand jury stage, because that’s what the courts have said, that it’s kind of open slather. The restrictions on it are kind of ethical, so that the Department of Justice instructs US attorneys and assistant US attorneys to act ethically and not to mislead juries, not to consciously construct a case out of evidence that won’t be admissible at trial, that sort of thing. So there are some ethical boundaries, but there are very few legal ones. It’s not that uncommon for trial judges to knock out a lot of evidence or even knock out the case and say there’s really no case to answer here.

Anita Barraud: Well, that’s happened in quite a few cases, and I mean, it famously failed to get enough evidence against Daniel Ellsberg about leaking the Pentagon Papers.

David Weisbrot: Yes, that’s a perfect example that the judges in that case not only dismissed but dismissed with prejudice. So they said, don’t come back to us with this case again, you know, there’s just no evidence here, and there’s a lot of evidence of police and prosecutorial misconduct. During the Vietnam War period there were a lot of charges brought against people: the Chicago Eight trial, the famous protesters at the Democratic convention, and in those cases quite often the...really, the motivations are more to get people to stop movements, to see political dissidents as evil and criminal, even though they may be exercising constitutional rights. Most often in those cases prosecutions don’t eventuate successfully, so people either have the charges dropped or they’re acquitted, but of course their life is turned upside down for some years in the interim.

Anita Barraud: David Weisbrot. The process, the people, what or even who the jury is investigating is often secret. It’s to protect the jury members, the target of the investigation as well as any witnesses. A grand jury doesn’t establish guilt or innocence, but whether there’s a case to answer, which may lead to an indictment, which at first can be sealed, also secret. Larry Siegel teaches at the Department of Criminal Justice and Criminology at the University of Massachusetts-Lowell and has written numerous books on law and crime.

Larry Siegel: You don’t even know if you’re being investigated by a grand jury. In fact, they can find sufficient evidence to try you, but they don’t even have to tell you. They could seal the indictment, because if you know you’re indicted you’re more likely to flee or seek shelter in the embassy or whatever, and once it’s sealed under law you can’t reveal...you know, the jurors would be under oath not to reveal what the outcome was. You could convene a grand jury because of an incident to determine who committed a crime, so in a sense it acts as a sleuthing body. For example, right now there’s a big case in the United States where two years ago a Mexican was immigrating or crossing the border, where he was hit or shot by a stun gun and subsequently died, and a grand jury is investigating was it justified, who did it and that type of thing.

Anita Barraud: And I understand that the current trial with the Catholic priests was based on a report from the grand jury in Philadelphia?

Larry Siegel: Yes, and that was the first incident where somebody was indicted not so much for doing the act but for covering it up. Where it would be used is if there’s some mitigating circumstances. So for example, if somebody’s involved in a brawl then they would probably not use a grand jury, but if there is a hint that it was racially motivated or by somebody’s sexual orientation then they’d be more likely to use a grand jury.

Anita Barraud: And tell me about subpoenas. What happens if you’re served with a subpoena as a witness, you can argue it’s unreasonable or oppressive, can’t you?

Larry Siegel: Right, well you could be ordered to answer questions…people voluntarily answer questions as long as it doesn’t incriminate yourself.

Anita Barraud: And then if you...you said you didn’t want to, or refused to, you could be held in civil contempt, which still attracts a jail sentence, I understand?

Larry Siegel: It certainly can, and there’s always that threat that if you’re not forthcoming or if you don’t tell the truth that you could be indicted.

Anita Barraud: And once the jury gets together they get...the prosecution puts their evidence, they vote, but they don’t have to be unanimous.

Larry Siegel: No, I mean, they don’t have to be unanimous, but the law in the United States is that juries do not have to be unanimous. The only jury that must be unanimous is in a capital trial, in a death penalty case.

Anita Barraud: And I read that a no-vote’s called ‘returning a bill of ignoramus’. Where did that come from?

Larry Siegel: Yes. You’ve got me on that one.

Anita Barraud: And the first written reference to a returned bill of ignoramus was in 1577. It says, ‘If they do not find it true, they write on the back side, “Ignoramus, we know nothing of it”, and so deliver it to the justices.’ While he admits it’s seen as a prosecutor’s tool, Larry Siegel does see some value in the grand jury system.

Larry Siegel: Well, you know, it’s kind of archaic, it’s not used all the time, and half the states don’t use it at all, but again in many cases they don’t indict. I mean, it’s not 100 per cent slam dunk; the grand jury could send a message saying, ‘We don’t want to indict somebody because we believe, even though he is legally guilty, he was socially justified’, and that occurred recently in this very well known case in Texas, where a kid said that one of...a ranch hand had taken his daughter into the woods and was molesting her, and he ran into a field and found this guy undressing his young daughter, and he beat him to death, and that just occurred recently, and the grand jury refused to indict him on murder.

Anita Barraud: Dr Larry Siegel from the University of Massachusetts-Lowell and the author of many books on law and crime. So do WikiLeaks founder Julian Assange and his supporters have anything to fear from a grand jury? David Weisbrot.

David Weisbrot: Well, he’s got a lot of reasons to be concerned. He’s...put it this way, he’s made some powerful enemies, and we’ve heard leading American politicians and people in the administration already accusing him of crimes and talking about the need for him to be brought to trial, and I think there are even a few ridiculous claims by American politicians that he should even be assassinated. So no, I think he’s got good reason to be very, very concerned and very cautious about how he proceeds.

Anita Barraud: There is an idea that the grand jury is investigating possible violations of the Espionage Act, which is quite a difficult and complicated act and not many people get indicted under it.

David Weisbrot: No, and that may be his best scenario, because it was certainly not drafted to get journalists or whistle-blowers or whatever. It was really meant to be spy v spy or people who are in senior positions in the government or the military that have classified as security sensitive information and sell or trade it to hostile powers. There’s now, however, a spider web of legislation that covers all of this classified and security sensitive information, so it runs all through the federal criminal law in the US and in Australia, but you might remember that the federal police here were asked at one stage, after members of the current government talked about Julian Assange’s criminality quite casually, and the Australian Federal Police, I believe, were reported to say that he hadn’t breached any Australian laws. I think he would have a very big case in the US for not having breached any American laws, but that’s only from what I read in the newspapers about the factual circumstances, I don’t know anything more.

Anita Barraud: And of course, we can’t really know anything more because it’s all sealed; you know, what they’re investigating or what kind of charges might be investigating is really speculative, isn’t it?

David Weisbrot: Completely, other than a few people like David House who’ve spoken about their particular experience, but we don’t know anything else about what the specific target is or who are the specific targets or those sorts of things.

Anita Barraud: And I mean, the US ambassador here in Australia has said that there’s no interest in Julian Assange.

David Weisbrot: I...yes, I believe that’s what he said.

Anita Barraud: David Weisbrot is Professor of Legal Policy at the United States Study Centre at Sydney University, and a former president of the Australian Law Reform Commission. This is the Law Report on ABC RN, Radio Australia and ABC News Radio. I’m Anita Barraud and you can also visit us online at abc.net.au/rn/lawreport or catch us at Twitter, @lawreportrn.

Guests

Professor David Weisbrot

Professor of legal policy at the United States Study Centre at Sydney University and former president of the Australian Law Reform Commission